Forum Replies Created
-
Replies
-
Alissa – You could try reading through a few Tribunal cases that deal with the subject matter of renovations and strata. You may find something that will assist you in one of the decisions here:
Alissa – If you believe that you are right then you have an option to do nothing about removing the planter boxes.
The onus will then be on the Strata Committee to take this matter further through the dispute resolution process should they believe that you are wrong and they are right.
If and when the Strata Committee seek a Tribunal Order for you to remove the planter boxes then you will have an opportunity to present to the Adjudicator all of the Reports that you have obtained. The Adjudicator will make a decision based on all of the facts and arguments raised on both sides.
The strata committee represents the owners of the owners corporation and, in the majority of situations, acts on behalf of the owners of the owners corporation. In this instance you will need to send your notification to the strata committee via the management company.
In addition to JT’s advice re looking to see if there is a by-law, can you ask the committee to provide evidence of how the costs have been assessed? If the cost is excessive then the imposition of a security bond could be deemed to be a penalty rather than the legitimate recovery of expenses incurred by the strata scheme.
There are other ways that an OC can recover costs if common property is damaged during a renovation that do not involve a hefty security deposit.
Fortunately these types of security bonds are illegal in Qld. The BCCMA states : A by-law (other than an exclusive use by-law) must not impose a monetary liability on the owner or occupier of a lot included in a community titles scheme.
All lot owners in a strata scheme are automatically part of the owners corporation.
Here are some extracts from the Office of Fair Trading that will answer your questions:
“The owners corporation has a range of other responsibilities under the Act and other laws. These responsibilities can also be delegated to a strata managing agent, including allowing an owner or a person with the owner’s consent to inspect the records of the strata scheme.”
If the records are kept by a strata management company then you would need to apply to them. If not then you would need to apply to the Owner’s Corporation.
“An owner or mortgagee (or their authorised person) can make a written request to the owners corporation to inspect the records. The request must be accompanied by the prescribed fee (currently $31 for the first hour of work).
The inspection is to take place as agreed by both parties. If no agreement can be reached within 3 days after the owners corporation receives the application, the owners corporation may stipulate the time and date by giving written notice. The inspection date cannot be later than 10 days from the date the owners corporation receives the notification.
Documents can be inspected in person or through electronic access to the documents or any other means agreed. A person may make copies of documents but must not, without the consent of the owners corporation, remove the document from the custody of the owners corporation.”
You should not be prevented from inspecting the records by either the management company or the executive committee. It is your right as an owner to inspect the records. These records are owned by all owners.
Hello Millie
Wouldn’t [s8(h)] RTA 2010 preclude a person from seeking an Order against short term letting agreements through the RTA Tribunal? Short term letting agreements are not within the jurisdiction of the RTA 2010.
Millie – I hope that you are correct but I am confused about the relevancy of the Residential Tenancies Act in this situation considering that the Office of Fair Trading seem to imply that the Residential Tenancies Act does not apply to short term holiday letting.
My confusion stems from this extract from their site:
“To avoid coming under the general tenancy laws of NSW the property must ordinarily be used for holiday purposes or if not, rented for periods of no more than 3 months for the purpose of a holiday.”
And from the Fact Sheet from Tenants NSW – Information, Advice and Advocacy. See the last bullet point which I have highlighted in bold for emphasis.
“Who/what the Act does not cover
- People who own a home and rent a site in a residential park are covered by the Residential (Land Lease) Communities Act 2013. (see thenoticeboard.org.au for factsheets)
- ‘protected’ tenants under the Landlord and Tenant (Amendment) Act 1948
- residential aged-care or respite-care premises
- serviced apartments, hotels, motels and backpackers hostels
- hospitals and nursing homes
- club premises used to provide temporary accommodation
- premises used mostly for the purpose of trade, profession, business or agriculture
- holiday parks occupation agreements
- retirement village residence contracts
- refuge or crisis accommodation agreements
- boarding and lodging agreements (see Factsheet 14: Boarders and lodgers)
- agreements giving the right to occupy residential premises for no more than 3 months for a holiday.”
Thanks JT.
To add some info from various Qld legal perspective which may (or may not) be relevant to NSW see below from Hynes Legal:
https://hyneslegal.com.au/news/can-aqueensland-body-corporate-stop-airbnb-nar-439
and from Hopgood Ganim Lawyers:
There have been several Qld Tribunal decisions on the subject of short term letting. Precedents have been set. I don’t believe that NSW Tribunals yet have had the opportunity to deal with this subject in such a substantial way as Qld has. Whether NSW Tribunal decisions go the way of QLD … only time will tell.
Tribunals in Qld have generally relied on the plain English meaning of ‘residential purposes’ to include any types of residential purpose, including short and long term letting and permanent residency. It has been held that limiting the type of residential use of a lot to only long term letting or permanent residency is contrary to the BCCMA.
Various solicitors in Qld have expressed the view that short term letting (including in the context of Airbnb and Stayz) is a type of residential use.
In Qld the ordinary meaning of ‘residential use’ appears to be to distinguish use of the unit as a dwelling from use of the unit for commercial or industrial purposes, rather than to distinguish between the length of stay.
One Adjudicator stated ” People holidaying in a unit would be the occupiers of the unit and be putting the unit to a ‘residential use’, even if they only had a short term lease. Also, even if the owner of the unit was running a commercial enterprise involving the letting out of the unit, the people holidaying in the unit would be putting the unit to a residential rather than a commercial or industrial use.”
The metaphorical ‘genie is now out of the bottle’ in Qld. It will interesting to see if the NSW ‘genie’ can be contained.
I like your thinking SH!
For the deadlock in the strata scheme this could boil down to the definition of ‘maintenance’ v the definition of an ‘improvement’. Technically, the replacement of the timber paling fence with another timber paling fence would be maintenance i.e. replacing like for like. This is a relatively simple matter.
However, if colorbond was used it would be an ‘improvement’ and as such would require a special resolution rather than a simple majority. This is unlikely to be achieved given the 50/50 split in the strata up to this point in time. A timber paling fence would likely be the winner.
Now we move on to the issue with the neighbour …..
With regard to the neighbouring property deadlock, usually it is the adjoining neighbours that each pay for half of the cost of the fence replacement. Speaking from a QLD perspective (and I believe that NSW is relatively similar) if there was a deadlock with the neighbour about the type of fence it is generally the case that the dividing fence only need to be a sufficient dividing fence. If the existing fence was a timber paling fence and most fences in the neighbourhood are timber paling fences then timber paling fences would probably be deemed to be a ‘sufficient fence’.
If the neighbour wanted a colorbond fence and the colorbond fence was more expensive than the paling fence then the neighbour would be liable for the fencing work to the extent that it is greater than the standard for a paling fence i.e. the neighbour would pay a higher proportion of the cost if colorbond was used as the fencing material.
If the neighbour was agreeable to this then colorbond would probably be the winner. If arguments still exist then its off to the Tribunal ….
I hope this makes sense!
( Apologies JT – we must have been responding at the same time – most of my commentary is similar to yours.)
I would agree with you on Q2 and add that a Chairperson’s use (or abuse) of their discretionary power can always be challenged if it is unreasonable.
Some Motions are straightforward and require scant explanatory material, others require a great deal of explanation.
It is well recognized by the Tribunal that: people in strata make mistakes; legislation is complicated; errors are made; and that some degree of leniency can apply. This very much depends on the situation, and the impact of the action (or indeed, the lack of action).
Insufficient information was provided about the substance of the Motions or the circumstances surrounding it for us to comment about whether or not the Chairperson should rule the Motion out of order on the basis of the lack of explanatory material.
NB: It is always advisable to abide by the requirements of the legislation when submitting Motions to avoid the Chairperson’s use of their discretionary power. Unfortunately, not all Chairperson’s decisions are ‘reasonable’ at all times.
My response to Q1 is the same as my response to Q2 – the Chairperson MAY rule the Motion out of order but the Chairperson can use their discretion in doing so. Ruling the Motion out of order is not mandatory merely because it does not strictly comply with Section 4 of Schedule 1 of the SSMA 2015. It is very important to understand the meaning of the word MAY in legislation.
INTERPRETATION ACT 1987 – SECT 9
Meaning of may and shall
9 Meaning of may and shall
(1) In any Act or instrument, the word “may”, if used to confer a power, indicates that the power may be exercised or not, at discretion.
(2) In any Act or instrument, the word “shall”, if used to impose a duty, indicates that the duty must be performed.
4 Inclusion of matters on agenda
(1) Any owner, or any person entitled to vote at a general meeting of an owners corporation, may require a motion to be included in the agenda of the next general meeting of the owners corporation.
(2) The requirement is to be made by written notice given to the secretary of the owners corporation that:
(a) sets out the required motion, and
(b) states the name of the person making the requirement, and
(c) includes an explanation of the motion of not more than 300 words in length.
19 Chairperson may rule certain motions out of order
The chairperson at a meeting may rule a motion out of order if:
(a) the chairperson considers that the motion, if carried, would conflict with this Act or the by-laws of the strata scheme or would otherwise be unlawful or unenforceable, or
(b) any requirement of this Act to include the form of the motion in the notice of the meeting has not been complied with.
The issue of display of advertising material on common property may be solved by regulating it rather than prohibiting it.
I agree with Jimmy T in saying that prohibitive by laws are generally invalid. In addition, the regulations imposed via a by law must be reasonable and not oppressive.
The by law regulations for advertising material could specify that: (1) permission to advertise must be applied for to the EC whereupon permission is not to be unreasonably with held; (2) where the advertising can be displayed; (3) the size and/or dimensions of the advertising; (4) the time frame that the advertising may be placed on common property; (5) the material that the advertising is comprised of e.g. paper, cardboard; (6) how the material is to be affixed e.g. by thumb tacks.
If the building has a Notice Board then this may be the ideal location for advertising material.
Real estate signage will obviously require different regulations.
I dislike being the bearer of bad news but it is my understanding that SSMA 2015 [s258] will not assist in ending short term holiday accommodation in NSW strata as it does not apply to this situation.
I have based my opinion on the following commentary from the NSW Office of Fair Trading at
https://www.fairtrading.nsw.gov.au/ftw/Consumers/Buying_services/Travel/Holiday_home_rentals.page
wherein it states:
To avoid coming under the general tenancy laws of NSW the property must ordinarily be used for holiday purposes or if not, rented for periods of no more than 3 months for the purpose of a holiday.
And further commentary from the NSW Office of Fair Trading states that:
Individuals are quite at liberty to rent out their holiday properties.
https://www.fairtrading.nsw.gov.au/ftw//Consumers/Buying_services/Travel/Renting_a_holiday_home.page?
If a person is renting a premises for less than 3 months and for a holiday, then a residential tenancy agreement should not be used.
The Residential Tenancies Act 2010 does not cover agreements giving the right to occupy residential premises for no more than 3 months for a holiday. The term “tenancy notice” in [s258] only applies to leases formed under Residential Tenancies Act 2010.
If there is no tenancy agreement (as defined by the Residential Tenancies Act 2010) then short stay accommodation will not be caught by SSMA 2105 [s258].
https://www.tenants.org.au/factsheet-01-residential-tenancies-act
Are you able to ask your lift repairer or manufacturer to source a 2nd hand sensor for you?
Thanks JT. This is a massive issue.
There is also a duty of disclosure for the OC to inform the building insurer if your building contains the flammable aluminum siding. Therefore it is essential to find out whether your building contains this product.
In one of the Bannermans Lawyers article below it states that the Metropolitan Fire and Emergency Services Board, Post Incident Analysis Report found that “Alcuobest, a Chinese manufactured, aluminium/polyethylene composite panel cladding product, that was used in the construction of the building was directly related to rapid spread of the fire” in the Lacross Apartments building fire.
The reasons why your insurer must be notified are outlined in one of the embedded links within the article linked below: